Encyclopedia of the

Asylum - Diplomatic asylum

In the course of the rise of the modern state system, diplomats became
invested with various privileges and immunities, part and parcel of the
convenient but necessary fiction that ambassadors and their entourage
occupied within their country of posting (the
"territorial" sovereign) an enclave of their own sovereign
power. Thus persons and property of the "sending state"
enjoyed within the protected zone customary (so-called extraterritorial)
rights and were exempt from the normal reach of the executive and
judicial power of the host or "receiving state," to cite
the language of the two Vienna conventions of 1961 and 1963 governing
diplomatic and consular practice, respectively. Accordingly, an embassy
could by custom extend the protection of its premises to fugitives from
the summary justice or even lynch law of the host country. (Warships and
merchant vessels were treated similarly.)

This tradition of diplomatic asylum became particularly strong in Latin
America during the nineteenth century—a reflection of the
political violence that frequently accompanied regime changes within the
continent. By custom such asylum was not extended to ordinary criminals
("persons accused of or condemned for common crimes") but
rather to "political offenders," those refugees whose only
offense, it was asserted, lay in their beliefs. To regulate this
tradition, in the first half of the twentieth century the Latin American
republics negotiated a series of conventions (Havana in 1928, Montevideo
in 1933, Caracas in 1954), though not all the countries ratified the
results. The Caracas convention followed a bitterly fought dispute
between Peru and Colombia before the International Court of Justice at
The Hague. In two connected decisions, the Asylum and Haya de la Torre
cases, 1950–1951, the court held that the right of diplomatic
asylum did not exist through customary international law but, if at all,
only by virtue of explicit bilateral or multilateral treaties, or
through the established and reciprocal action of both countries.
(Ironically, in the absence of a legal solution, the court urged the
parties to resolve their dispute by negotiations and compromise, in
other words, through what in lay terms would be called diplomacy.)
Surveying the history and jurisprudence of diplomatic asylum,
sub voce
the scholar and advocate Ian Brownlie writes that, despite the examples
drawn from "Latin American regional custom, … it is very
doubtful if a right of asylum for either political or other offenders is
recognized by general international law."

The United States, like other major powers, has generally disapproved of
the invocation of diplomatic immunity for fugitives. But not long after
the eventual resolution of the Colombian-Peruvian case, the U.S. embassy
in Budapest granted diplomatic asylum to the Roman Catholic primate of
Hungary, Joseph Cardinal Mindszenty, as the Americans registered their
profound opposition to the Soviet repression of the Hungarian uprising
in October–November 1956. This episode—an exception to
normal U.S. policy—was a deliberate Cold War tactic and has to be
seen as part of a larger pattern of American diplomatic and legal
responses to the political and ideological challenges of communism. At
the end of the Korean War (1950–1953), for example, the
U.S.–led United Nations negotiators offered asylum en masse to
North Korean and mainland Chinese prisoners of war who did not wish to
be repatriated to their home countries.

User Contributions:

Comment about this article, ask questions, or add new information about this topic: